ILLINOIS POLLUTION CONTROL BOARD
August 22,
1991
WILLIAN~ONADHESIVES,
INC.,
)
)
Petitioner,
)
PCB 91—112
)
(UST Fund Reimbursement)
v.
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(M. Nardulli):
This matter comes before the Board on a July 23,
1991 Motion
for Summary Judgment.
The Agency filed this motion pursuant to
35 Ill.
Adin. Code 101.244 and Ill.
Rev. Stat.
1989 ch.
110,
par.
2—1005.
Attached to the Motion is an affidavit of Betty M.
Carlisle,
an employee of the Office of the State Fire Marshall.
Williamson Adhesives has not filed a response to this motion.
Williamson initiated this proceeding by its petition for
review dated June 28,
1991.
The petition sought review pursuant
to Ill. Rev. Stat.
1989 ch.
111½,
par. 1022.l8b(g) and 1040 of
the Agency’s May 24,
1991 denial of reimbursement for its costs
of corrective action under Ill. Rev.
Stat.
1989 ch.
111½, par.
1022. l8b(a)
The Motion for Summary Judgment avers that various portions
of the record indicate that the tanks for which Williamson seeks
reimbursement of corrective action costs actually contained
hexane and a toluene—hexane mixture.
It also asserts that
examination of the contaminated soils and groundwater at the site
indicate the presence of numerous other chemical solvents.
Based
on this,
the Agency argues that the tanks contained a “hazardous
substance,” and not “petroleum,” so they are ineligible for
registration and reimbursement.
The affidavit of Betty M. Carlisle states that Williamson
Adhesive’s March 19,
1986 registration form indicates that three
tanks contained hexane, one tank contained toluene, and one tank
contained an unknown substance.
It also relates that the March
22,
1991 registration form submitted by Williamson Adhesives
indicates that four tanks contained hexane and one tank contained
toluene.
The petition for review states that “four of the five
tanks” contained hexane,
“a petroleum product, and a petroleum
distillate,
and a petroleum fraction.”
The petition does not
indicate the contents of the fifth tank.
Summary judgment is appropriate where there
is no genuine
issue of material fact based on the affidavits, admissions,
pleadings, and other items in the record.
Caruthers v.
B.C.
125—355
2
Christopher
& Co.,
57
Ill.
2d 376,
380,
313 N.E.2d 457,
459
(1974);,
Ill. Rev.
Stat. 1989 ch.
110, par. 1005(d).
In this
proceeding,
the petition indicates that four of the five tanks
contained hexane.
The affidavit attached to the motion for
èummary judgment indicates that Williamson Adhesives disclosed to
the State Agency charged with.keeping such records, see Ill. Rev.
Stat.
1990 Supp.
ch.
127½, par.
156, that four of the tanks
contained hexane and the fifth contained toluene.
Therefore,
this matter is ripe for summary judgment if Williamson Adhesives
is somehow ineligible for reimbursement based on this information
as to the contents of the five tanks.
Section 22.18b(a) (3)
of the Environmental Protection Act
(Act)
allows reimbursement of the costs of corrective action for
underground storage tanks incurred by the owner or operator “as a
result of a release of petroleum,
but not including any hazardous
substance,
from an underground storage tank.”
Ill. Rev.
Stat.
1989 ch.
111½,
par. 1022.18b(a)(3)
(emphasis added).
Section
22.18(e) (1) (A)
of the Act defines “petroleum” as that term is
defined by Subtitle
I of the Hazardous and Solid Waste Amendments
of 1984,
P.L.
98—616, codified as Section 9001(8)
of the
Resources Conservation and Recovery Act,
42 U.S.C.
§ 6991(8).
This federal definition provides that”petroleum” means
“petroleum,
including crude oil or any fraction thereof which is
liquid at standard conditions of temperature and pressure
.
.
Therefore,
resolution of two preliminary issues is necessary
to determining whether a material is or is not “petroleum”
eligible for reimbursement pursuant to Section 22.18b(a).
The
first is whether the material is “crude oil or any fraction
thereof which
is liquid at standard conditions of temperature and
pressure.”
The second is whether the material is a “hazardous
substance” for which reimbursement cannot occur.
The material
must both constitute “crude oil or a fraction thereof” ‘and not be
a “hazardous substance” for reimbursement of corrective action
costs.
Determination Whether Petroleum—-Crude Oil or a Fraction Thereof
As to the first issue, whether the material is “petroleum,”
G. Hawley, The Condensed Chemical ‘Dictionary 530
(10th ed.
1981),
states that n-hexane derives from the fractional distillation of
petroleum.
Fractional distillation is the purification of
fractions of crude oil without chemical change.
See ~
at 479
(definition of “fractional distillation”).
On the other hand,
the Dictionary states that toluene
is derived from the fractional
distillation of coal-tar or the catalytic reforming of petroleum.
~
at 1030
& 1100-01.
Catalytic reformation is the
decomposition of low—octane hydrocarbon gasses or petroleum by
heat and pressure in the presence of some catalyst.
See ~
at
886—87
(definition of “reforming”).
125—356
3
Both hexane (melting point ranging from
-153°C
to
-95°C
and
boiling point ranging from 49°Cto 69°C,depending on form,
see
N. Lange, Handbook of Chemistry at 592—93
(10th ed.
1967)) and
toluene
(melting point of -95°Cand boiling point of 11loC,~g~
Handbook of Chemistry at 714-15
(10th ed.
1967)) are liquids
under standard conditions.
Thus,
they both fulfill that portion
of the definition of “petroleum.”
Since hexane is a component of
petroleum simply purified out of that material, hexane is a
fraction of crude oil.
However, since a chemical change occurs
to produce toluene from petroleum, this material is not a
natural~.y—occurringfraction of crude oil.
Therefore,
for the
purposes of whether the first
issue, hexane is “petroleum”
because it is “crude oil or a fraction thereof,” but toluene is
not “petroleum” because it does not similarly occur naturally in
crude oil.
Toluene derives from a process of chemical
modification of crude oil.
Determination Whether
a Hazardous Substance
The second line of inquiry arises under Section 22.18b,
which does not allow reimbursement for any “hazardous substance.”
Section 3.14 of the Act defines
a “hazardous substance” as any
hazardous waste or any substance designated pursuant to any of
several federal statutes.
It specifically excludes “petroleum,
including crude oil or any fraction thereof” which is not
otherwise specifically listed or designated as a hazardous waste
or a hazardous substance pursuant to one of the federal statutes.
See Ill.
Rev.
Stat.
1989 ch.
111½, par.
1003.14.
Thus,
if either
hexane or toluene is
a hazardous waste or designated as a
hazardous substance pursuant to the cited federal statutes,
it is
not “petroleum” for which reimbursement
is possible under Section
22.18b(a)
The Section 3.14 definition of “hazardous substance”
includes “any substance designated pursuant to Section
311(b) (2) (A)
of the Federal Water Pollution Control Act”
(Clean
Water Act),
P.L.
92—500,
42 U.S.C.
§ 1321(b) (2) (A); “any
.
substance designated pursuant to Section 102 of the Comprehen-
sive Environmental Response, Compensation, and Liability Act of
1980”
(CERCLA),
P.L.
96—510,
42 U.S.C.
§
9602;
“any toxic
pollutant listed under Section 307(a)
of the Clean Water Act,”
42
U.S.C.
S 1317(a); “any hazardous air pollutant listed under
Section 112 of the Clean Air Act,” P.L.
95-95,
42 U.S.C.
5 7412;
and “any imminently hazardous chemical substance or mixture with
respect to which
USEPA
has taken action pursuant to Section
7
of the Toxic Substances Control Act”
(TSCA), P.L. 94—469,
15
U.S.C.
§
2606.
Ill.
Rev. Stat.
1989 ch.
111½,
par. 1003.14(A),
(B)
&
(D)—(F).
Also included is “any hazardous waste.”
Ill.
Rev.
Stat.
1989 ch.
111½,
par. 1003.14(C).
The Board has
examined each federal statute and the USEPA regulations and
actions undertaken under their authority.
The Board has also
examined the Illinois hazardous waste regulations.
Both hexane
125—357
4
and toluene are hazardous substances under one or more of these
designations.
40 CFR 116.4 lists the hazardous substances designated by
USEPA under this Section 311(b) (2) (A)
of the Clean Water Act.
USEPA has included toluene in this list.
Hexane is not on this
list.
Thus, this category of hazardous substance includes
toluene.
Therefore toluene is a hazardous substance, as such is
defined by Section 3.14 of the Act.
40,CFR 302.4 lists the hazardous substances designated by
USEPA under Section 102 of CERCLA.
As with the Clean Water Act
Section 311(b) hazardous substances, toluene appears on the list,
and hexane does not.
Again, this category of hazardous substance
includes toluene.
The list of toxic water pollutants designated by USEPA under
Section 307(a)
of the Clean Water Act is at 40 CFR 401.15.
Toluene appears on that list,
but hexane does not.
This category
of hazardous substance includes toluene.
Congress expressly included toluene and hexane in the
initial listing of hazardous air pollutants under Section 112 of
the Clean Air Act.
42 U.S.C.
§ 7412(a).
Congress further
required USEPA to periodically review the list and revise
it by
rule.
40 CFR 61.01(a)
is the list of hazardous air pollutants
designated by USEPA.
This list includes neither hexane nor
toluene, but 40 CFR 61.01, which is the list of “other
substances” for which USEPA gave public consideration of toxic
effects,
includes toluene.
Since Section 3.14(E)
expressly
includes “any hazardous air pollutant listed under Section 112
.
•,“
the Congressional listing of hexane and toluene at
Section 112(a)
of the Clean Air Act includes these materials as
“hazardous substances” under the Section 3.14 definition.
Section
7 of TSCA allows seizure of any material or for
relief against any person handling any material that USEPA has
designated an “imminently hazardous substance or mixture..”
15
U.S.C.
S
2606.
The Board could find no reference to any such
TSCA Section 7 action by USEPA.
Such actions are not listed in
the Code of Federal Regulations.
See 40 CFR 700-99
(1990).
Therefore, nothing in the record or the federal regulations would
indicate that either hexane or toluene
is a “hazardous substance”
pursuant to Section 3.14(F).
The final inclusion in the definition of “hazardous
substance”
is “any hazardous waste,” under Section 3.14(C).
Section 3.15 defines “hazardous waste” as those wastes
“identified, by characteristics or listing,
as hazardous pursuant
to Section 3001 of the Resource Conservation and Recovery Act of
1976,
P.L.
94—580,
42
U.S.C.
S 6921,
or pursuant to Board
regulations.”
Ill.
Rev.
Stat.
1989 ch.
111½, par.
1003.15.
The
125—358
5
Board regulations identify hazardous wastes of both categories,
at 35 Ill. Adm. Code 721.
,~
35 Ill. Adm. Code 721.101(a);
Ill.
Rev.
Stat.
1989 ch.
111½,
par.
1022.4
(Board authority to adopt
regulations identical in substance to the federal regulations).
Nothing in the record indicates that either toluene or hexane are
hazardous wastes.
The determination of whether any material
is a “hazardous
waste” under Part 721 is a multi—layered determination.
The
thresho~.ddetermination in determining whether any material is a
“hazardous waste” is the determination that it is a “solid
waste.”
See
35 Ill. Adm. Code 721.103(a).
After determining
that a material is a “solid waste,” the inquiry proceeds to a
determination whether it is a “hazardous waste.”
If not a “solid
waste,” a material is not a “hazardous waste.”
A “solid waste”
is “any discarded material” not excluded
from regulation.
35 Ill.
Adm.
Code’ 721.102 (a) (1).
A “discarded
material” is any material that is abandoned,
recycled or
“considered waste—like.”
35
Ill. Adm. Code 721.102(a) (2).
Nothing in the record indicates that the hexane or toluene
contained in the tanks was abandoned,
recycled or “considered
waste—like” while contained in Williamson Adhesives’
tanks.
Therefore,
neither substance is established by the record before
the Board as a Part 721 or. Section 3.15 “hazardous waste.”
Therefore,
neither is a Section 3.14(C)
“hazardous substance.”
In summary, both hexane and toluene are “hazardous
substances” under Section 3.14 of the Act.
Congress listed
hexane as a “hazardous air pollutant”
in Section 112(a)
of the
Clean Air Act.
Congress similarly listed toluene in that
provision.
Further, USEPA has designated toluene as a “hazardous
substance”
at 40 CFR 116.4, pursuant to Section 311(b) (2) (A) of
the Clean Water Act, and at 40 CFR 302.4, pursuant to Section 102
of CERCLA, and as a “toxic water pollutant” at 40 CFR 401.15,
pursuant to Section 307(a)
of the Clean Water Act.
Conclusion
The record before the Board indicates the following from the
face of the petition for review and from the public records
submitted to the Office of the State Fire Marshall by Williamson
Adhesives,
as indicated by the affidavit of the person charged
with maintaining those records:
1.
Hexane is “petroleum,” as that term is defined at
Section 22.18
of the Act; however, hexane is also a
“hazardous substance,” as defined at Section 3.14;
2.
Toluene is not “petroleum;” however,
it is a “hazardous
substance,” under those provisions.
125—359
6
Therefore, pursuant to Section 22.18b(a)(3),
Ill. Rev.
Stat.
1989 ch.
111½,
par. l022.18b(a) (3), Williamson Adhesives is not
eligible for reimbursement for costs of corrective action.
A
release of toluene is not
a “release of petroleum” that would
entitle Williamson Adhesives to such reimbursement.
A release of
hexane is a release of “hazardous substance” for which
reimbursement is not allowed.
The Board hereby grants summary judgment in favor of the
Agency.
The Board hereby affirms the Agency decision of May 24,
1991 that disallowed reimbursement from the Underground storage
Tank Reimbursement Fund.
This docket is closed.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat.
1989 ch.
111½, par.
1041,
provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, do hereby cerj4fy that the above Order was adopted on the
~4~L
day of ________________________,
1991, by a vote of
7-~J
.
/
~.
Dorothy M. ~tinn,Clerk
Illinois Pollution Control Board
125—360